Harvey v. Cherry

Boardman, J.:

We are entirely satisfied with the opinion of the referee in this case. His reasoning and conclusion is correct. It is conceded that plaintiff had an insurable interest (Rohrbach v. Germania Ins. Co. 62 N. Y., 47.) It is established that he insured such interest, for his own benefit, in the name of defendant Cherry, but payable, in case of loss, to plaintiff, as his interest might appear. That gave plaintiff a right ot action in his own name against the insurers, in case of loss, on such policy. He would be entitled to recover the amount of his loss, not exceeding the amount of his insurance in such action. (Pitney v. Glen's Falls Ins. Co., 65 N. Y., 6; Cone *357v. Niagara Ins. Co., 60 id., 619.) The insurers have recognized plaintiff’s rights, and paid over the amount of insurance moneys agreed upon. Such moneys, by whomsoever received, belong to plaintiff. They were paid under and by virtue of a policy running to him, procured and paid for by him. The defendant Cherry could not therefore, I think, be permitted to set up a defense of which the insurers only could take advantage. These views are not seriously controverted by appellants’ counsel; but he insists that any insurance effected and paid for by plaintiff, for his own benefit only, inured to the benefit of all others having a like insurable interest. The authorities cited for defendants do not sustain the position. They are cases of partners, lessees or tenants in common, where one of the persons having a common interest takes an undue advantage of his associates to secure a benefit for himself, to their injury. (Burhans v. Van Zandt, 7 N. Y., 523; Van Horne v. Fonda, 5 Johns. Ch., 407; Mitchell v. Reed, 61 N. Y., 126; Adams v. Outhouse, 45 id., 318; Getty v. Devlin, 54 id., 403 ; Struthers v. Pearce, 51 id., 357.) But the act of plaintiff in insuring his own interest was not hostile to the others having similar interests. It did not injure them. It is not evidence of any unfair advantage. They could have insured as the plaintiff did. Because they did not is not a reason why they should share in the fruits of plaintiff’s vigilance, care and expense. A mortgagee may insure his interest in the mortgaged property. One of two several mortgagees may so insure his own interest, and the other would not be entitled to share therein. ( Waring v. Loder, 53 N. Y., 581.) So in the case of joint owners. (Miller v. Eagle Ins. Co., 2 E. D. Smith, 299; Turner v. Burrows, 5 Wend, 541; S. C., 8 id., 144; S. C., 24 id., 276.) The defendant Cherry, as trustee, declined to insure the property for the benefit of all the cestmis gue trust beyond a certain amount. It is of no consequence what his reasons were. The amount of insurance then upon the property was not sufficient to protect the plaintiff’s interest. He therefore procures an insurance of his own interest in his own name, and pays the premium therefor. Neither upon principle nor authority do I find any reason for holding such transaction invalid in its form or manner of execution, or that the others interested in the same property with plaintiff could justly be allowed to share in the proceeds of his precaution and expenditure.

*358For the reasons stated, we think the judgment should be affirmed, with costs.

Leaisned, P. J., concurred; Bookes, J., took no part.

Judgment affirmed, with costs.